June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS E. NAVARRO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-11-2017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012
Before Judges Grall and Alvarez.
Tried by a jury, defendant Carlos Navarro was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1).*fn1 Defendant was sentenced to ten years' imprisonment subject to five years of parole ineligibility and assessed appropriate fines and penalties. Defendant appeals and we affirm, except we remand for reconsideration of the length of the parole ineligibility term.
On September 2, 2008, a customs and border patrol agent at JFK Airport inspected a package originating from Peru addressed to Carlos Navarro at 25 Wilkinson Terrace, Second Floor, Kearny, New Jersey. The package, shipped by a carrier known as "EMS Serpost," had a tracking number of "EE005716565PE." After x-rays disclosed items in the box having irregular density, it was opened, and found to contain a t-shirt, documents, and two wooden statues. The bases were removed from the statues, inside of which were plastic bags filled with cocaine, 571 grams in one and 371 grams in the other. The package was then given to Hudson County Detective Bobby Crudele for further investigation.
Crudele and Brian Wittig, a United States Postal Service Inspector, arranged a controlled delivery of the package. The first attempt failed, but a note was left for defendant about the failed delivery attempt.
On September 5, 2008, during the second attempt, Wittig, dressed as a postal worker, entered defendant's apartment building and saw that the "front door leading into the vestibule was propped open." A note had been placed on the apartment door, stating "the doorbell was broken, please knock." Wittig knocked, and defendant came "clamoring [sic] down the stairs." When Wittig told him he had a package for Carlos Navarro at that address, "[h]e responded yes." Defendant signed the slip acknowledging receipt, and printed his name below his signature. Wittig handed the package over and left. As he was leaving, he "heard the sound of a paper being ripped, being crumbled [sic] down." He then looked back and saw that the note on defendant's apartment door had been torn off.
Crudele and his team waited a few minutes and then entered the premises. After arresting defendant, who identified himself as being from Peru, Crudele found another person in the kitchen, Jorge Luis Vega. Vega claimed to have been present in the apartment because he was having marital difficulties and was hoping to be able to stay there temporarily. At trial, Vega testified that he and defendant worked together and had socialized together.
The package was located on a window sill in the "front bedroom/living room" area. Pay stubs and other items bearing defendant's name were stacked on top of the dresser in that room. The package had been opened and the statues removed. One lay in a horizontal position, and the other was propped up. The cocaine brick was partially visible inside the statue that was propped up.
Crudele accompanied defendant to the Hudson County Prosecutor's Task Force Office to be interviewed. While waiting, defendant pulled out a piece of paper the approximate size of a "post-it" and put it in his mouth. Crudele grabbed defendant, put his finger in defendant's mouth, and fished out the paper, a delivery slip bearing the EMS Serpost serial number from Peru. When Crudele asked defendant why he had tried to swallow the slip, defendant responded that he thought the paper was gum.
At trial, defendant testified in his own behalf. He said the morning of the arrest, Vega called and asked to meet him in the apartment, and accompanied him on a trip to the post office. Defendant said he went to the post office because he was expecting to pick up a package concerning his divorce. At the post office, he claimed he was advised the package was already on the truck and left his phone number with the person at the counter. Defendant also claimed to have subsequently received a phone call that the package would be delivered between 11:00 a.m. and 12:00 p.m., so he and Vega returned to his apartment, and a sheriff delivered a "paper" concerning his divorce. Soon after, he heard a knock on the door and was given the package containing the statues. He signed for it and opened it. Defendant agreed it contained statues and a t-shirt, but said the birth certificates were in the name of a different person, "Carlos Alberto Navarro[,]" while his name was "Carlos Enrique Navarro Terveno." In addition to the name difference, defendant said he was not born in Lima, the birth certificates' point of origin. Although defendant acknowledged opening the package, he said that Vega immediately took it from him, that he did not even touch the statues, and that he knew nothing about the package.
When asked to explain his conduct in trying to swallow the tracking slip, defendant stated he did not know whether it had been given to him by Vega or by the post office. He said he put it in his mouth "[b]ecause I ha[d] the need, I don't know, my mouth was dry[,]" and denied trying to swallow it.
On appeal, defendant through counsel raises the following issues:
THE STATE COMMITTED REVERSIBLE MISCONDUCT BY COMMENTING IN SUMMATION ON THE DEFENDANT'S SILENCE. U.S. CONST., AMENDS. V, XIV. (Not Raised Below)
THE TRIAL COURT EFFECTIVELY DIRECTED A VERDICT AS TO THE AMOUNT OF COCAINE PURPORTEDLY POSSESSED BY THE DEFENDANT, AND THUS THE DEGREE OF THE OFFENSE, NECESSITATING VACATION OF THE FIRST-DEGREE CONVICTION. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9 (Not Raised Below)
THE SENTENCE IMPOSED ON THE DEFENDANT, AND PARTICULARLY THE PAROLE DISQUALIFIER, WAS IMPROPER AND EXCESSIVE, NECESSITATING REDUCTION In addition, defendant pro se raises the following arguments:
THE COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO ADMIT HEARSAY EVIDENCE. U.S. CONST. AMEND. VI AND N.J.R.E. 801, 802 (Not Raised Below)
A. Detective Crudele's testimony was partially hearsay and it violated the New Jersey Rule of Evidence as defined in N.J.R.E. 801(c) and 802
B. The hearsay admitted within the trial of the defendant created errors mandating a reversal of the defendant's conviction
C. The State's failure to raise an arguable theory in the Court below as to how such testimony might be admissible bars any such argument now
Defendant's first contention is that the State improperly "criticize[d] . . . defendant for not volunteering, to interrogating officers, information contained on the paper that was extracted from his mouth." Defendant analogizes this to improper comment on the right to remain silent.
It is beyond cavil that the Fifth Amendment of the United States Constitution affords protection against self-incrimination. U.S. Const. amend. V. The right against self-incrimination is further derived from common law and codified in our state's statutes and rules. State v. Reed, 133 N.J. 237, 250 (1993). It has been interpreted to mean a prosecutor may not question a defendant during a criminal trial about his or her silence "while in custody, under interrogation, or 'at or near' the time of his arrest . . . ." State v. Mohammed, 182 N.J. 551, 558 (2005). Even a suspect who initially speaks to the police "does not waive his right against self-incrimination when he falls silent - the words he could have spoken cannot be used against him." Id. at 568. Thus, "[a] suspect has an absolute right to remain silent while under police interrogation, and at trial the State may draw no negative inference from that silence." Reed, supra, 133 N.J. at 250; see also State v. Lyle, 73 N.J. 403, 408-11 (1977) (holding it was improper for a prosecutor to comment on a defendant's late assertion of self-defense, where defendant initially admitted shooting the victim but subsequently asserted his right to remain silent).
But the analogy fails in this case. Defendant's act of attempting to destroy the tracking slip by swallowing was inculpatory conduct, not just silence. Defendant did far more than just fail to speak - he attempted to destroy evidence. Factually, the two are so different as to make the comparison meaningless.
Furthermore, a prosecutor unquestionably has the right to highlight inconsistencies between a defendant's statement to the police at or near the time of his arrest and his defense at trial. Mohammed, supra, 182 N.J. at 566; State v. Deatore, 70 N.J. 100, 118-19 (1976); see also State v. Tucker, 190 N.J. 183, 189 (2007) ("a defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda[*fn2 ] statement and testimony at trial."); State v. Elkwisni, 190 N.J. 169, 172, 179-80 (2007) (holding prosecutor could cross-examine a defendant about inconsistencies between post-arrest statement to police and exculpatory testimony at trial for impeachment purposes); State v. Noble, 398 N.J. Super. 574, 589-90 (App. Div.) (holding prosecutor's repeated references to timing of a defendant's alibi notice did not violate a defendant's right to remain silent, where the timing was used to highlight inconsistencies between the factual assertions in the notice and defendant's trial testimony two days later), certif. denied, 195 N.J. 522 (2008). And the State is permitted to use pre-arrest silence for impeachment purposes, when a defendant testifies at trial, so long as the pre-arrest silence does not involve governmental compulsion. State v. Brown, 190 N.J. 144, 158 (2007).
Defendant's attempt at destroying the evidence by swallowing it is equivalent to a statement inconsistent with his trial testimony. At trial, he stated that the tracking slip was given to him either by the post office or Vega, that he innocently possessed it, and that he had no knowledge that the package contained cocaine. If indeed that was the case, there was no reason for him to destroy the slip. Thus, not only was the prosecutor's cross-examination of defendant entirely proper, the prosecutor's summation commenting upon defendant's attempt at destroying the evidence was equally proper. Neither was violative of defendant's right to remain silent.
Defendant next contends the trial judge directed a verdict as to the amount of cocaine he allegedly possessed. The parties stipulated during trial that the amount exceeded five ounces and the judge referred to that stipulation several times in his charge. He also stated the following:
Now if you found the defendant guilty of possessing with intent to distribute the cocaine that was found, you then must determine the quantity of the cocaine involved.
It is the State's burden to prove beyond a reasonable doubt the quantity of the cocaine involved. The State need not prove, according to State [v.] Torres, . . . defendant's knowledge of the quantity of the drugs so long as it proves beyond a reasonable doubt defendant knowingly possessed a controlled dangerous substance.
. . . And you have to find as a fact that it was over 5 ounces. And remember both, the two packages, they were well over 5 ounces, each one. And you must find it was possessed on that date, okay.
A juror then asked:
Can you clarify the reference to 5 ounces[?]
THE COURT: Okay. If you'll remember, I believe they said there's 28 grams to an ounce.
JUROR: Right, is there some legal elements to the 5 ounce reference?
THE COURT: You have to find that there was 5 ounces in the package. And you'll remember that the testimony was there were 900 and something grams. They were split up in two packages. And that I believe the testimony was that each one of those packages was over 5 ounces, okay.
But that's one of the items you have to prove. It's been stipulated that they're over 5 ounces. But you have to find that also. And that's all I can answer, okay.
The record therefore does not support defendant's claim. The trial judge, tracking the model jury charge, Model Jury Charge (Criminal), "Stipulations" (2005), instructed the jury that regardless of the stipulation as to amount in order to convict, they must nonetheless independently find that defendant possessed cocaine in excess of five ounces, a statutory element of the offense. This point lacks merit because it lacks record support.
Defendant also asserts the sentence was excessive. The trial judge said the following at sentencing:
Okay. On your plea of guilty to Indictment 2017 of the '08 term, sentence is, the [c]court's sentence is term in State prison for 10 years, with 5 years of parole ineligibility.
I find aggravating factor 9, mitigating factor 7. I must also impose the following fines: $50 VCCB, $75 Safe Neighborhoods, $30 Law Enforcement, $3,000 DEDR, $50 lab fee and 6 months loss of license.
When imposing a sentence, a trial court must identify and balance the aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b), and articulate its analysis of those factors as they apply to the particular defendant. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Natale, 184 N.J. 458, 489 (2005); R. 3:21-4(g). We do not substitute our assessment of aggravating and mitigating factors for that of the trial court so long as the consideration of those factors is supported by substantial credible evidence in the record. Natale, supra, 184 N.J. at 489; State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Soto, 340 N.J. Super. 47, 71 (App. Div.), certif. denied, 170 N.J. 209 (2001). When the factors are not supported by the record, we may remand for resentencing. Bieniek, supra, 200 N.J. at 608. We may also modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
The trial judge sentenced defendant at the lowest end of the sentencing range, but imposed a one-half term of parole ineligibility. That is troubling given the judge balanced a single aggravating against a single mitigating factor. The court was required to impose parole ineligibility from one-third to one-half based on the statute, N.J.S.A. 2C:35-5(b)(1). If the single mitigating factor preponderated, thereby making the lowest base term appropriate, the single aggravating factor did not justify the decision to impose the maximum fraction of parole ineligibility as opposed to the minimum.
The length of parole ineligibility must be consistent with the length of the base term, and the weighing of relevant aggravating and mitigating factors. State v. Towey, 114 N.J. 69, 81 (1989); State v. Biancamano, 284 N.J. Super. 654, 664-65 (App. Div. 1995), certif. denied, 143 N.J. 516 (1996). The length of the base term of a sentence and the minimum term of parole ineligibility must bear some correlation even if parole ineligibility is mandated by statute. State v. Kirk, 145 N.J. 159, 177-78 (1996). Accordingly, we remand for resentencing as to the length of the parole ineligibility term.
Lastly, we address defendant's pro se contention that Crudele's testimony included impermissible hearsay which prejudiced the outcome. Although not entirely clear, defendant seems to be identifying Crudele's statement that defendant came from Peru as impermissible hearsay, along with his statement that Vega was found in the kitchen, and his description of the discovery of the cocaine located in defendant's bedroom.
Insofar as the claim that Crudele's statement that defendant came from Peru was impermissible hearsay, the State's purpose was not to prove that defendant's country of origin was Peru. Therefore, the statement falls outside the definition of hearsay. See N.J.R.E. 801.
Our reading of the record does not support defendant's characterization of the remaining statements as hearsay. Crudele said that he was one of several officers who swept through the apartment, and in the process he encountered Vega standing in the kitchen. Similarly, Crudele entered defendant's bedroom and saw the package and its contents on the window sill, as well as the documents bearing defendant's name on his dresser. Therefore these statements are not hearsay as Crudele was describing his own observations. These claims do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed as to the convictions, but remanded for resentencing.